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ELCAllowedNotice of Motion application dated 28th May, 2024 in the main suit· [2024] KEELC 6432 (KLR)

Ethics and Anti-Corruption Commission v Chembe Holdings Limited & 4 others (Civil Suit 70 & 71 of 2009 (Consolidated)) [2024] KEELC 6432 (KLR)

Environment and Land Court
26 September 2024
7,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed defendants in a 15-year-old land case to amend their defence and add a counterclaim, despite the delay.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (L.L. Naikuni, J) determined a Notice of Motion dated 28th May 2024 by Musk-deer Limited, Mohamed Hussein Jafier and Ashok Doshi, the 2nd, 4th and 5th Defendants, seeking leave to further amend their Defence and introduce a Counter-Claim in a suit filed in 2009 by the Ethics and Anti-Corruption Commission concerning the legality of the allocation of Mombasa Island Blocks I/528 and I/529. The applicants discovered, through a Further List of Documents filed in February 2024, that during the pendency of the suit the Commissioner of Lands had in 2010 cancelled the surveys of the suit parcels and amalgamated them with Mombasa Island Block I/523 to form Mombasa Island Block I/576, allocating the extension to Kenya Ports Authority. They argued the amalgamation breached the doctrine of lis pendens and was done without hearing them. The Plaintiff, through an investigator's affidavit, opposed, asserting an interlocutory injunction of 22nd July 2009 and restrictions were in place, that the 2nd Defendant transferred the properties to the 4th and 5th Defendants in 2017, and that the proposed amendment introduced a new claim and would prejudice a part-heard matter. Framing three issues, the court restated the principles on amendments of pleadings, holding that amendments should be freely allowed unless prejudicial in a way costs cannot compensate, and may be granted at any stage. It found only inconvenience, compensable by costs, would result, and allowed the amendment and Counter-Claim in terms of the draft annexed, granting the Plaintiff corresponding leave to amend. The Plaintiff was awarded Kshs. 50,000 as thrown-away costs; the application's costs abide the suit. Hearing was fixed for 19th November 2024.

Key legal issues

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01

Principles governing amendment of pleadings

Holding

The power to amend, drawn from Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, is exercisable at any stage before judgment, must be exercised judiciously, and amendments should be freely allowed if made in good faith and any prejudice can be compensated by costs.

Reasoning

The court reviewed Order 8 Rule 5, Bullen and Leake, Halsbury's Laws, and the Court of Appeal decisions in Ochieng v First National Bank of Chicago, St. Patrick's Hill School and AAT Holdings. It distilled that amendments aim at determining the true substantive merits, must not change the character of the case, must not deprive the other side of legal rights, and delay is curable by costs.

p. 10
02

Whether leave to amend the Defence and introduce a Counter-Claim should be granted in a part-heard matter

Holding

Yes. The applicants' discovery that the suit properties had been amalgamated into Mombasa Island Block I/576 during the pendency of the suit raised real issues requiring interrogation; only inconvenience, compensable by thrown-away costs, would be caused to the Plaintiff.

Reasoning

The court found the matter had not proceeded to hearing (notwithstanding respondents' claim it was part heard), that the applicant had annexed a draft Amended Defence and Counter-Claim, and that although the applicants were tardy, the interest of justice, determination of the real issues and avoidance of multiplicity of suits favoured granting leave, with the Plaintiff granted corresponding leave to amend.

p. 14
03

Costs of the application

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful party ordinarily gets costs, but here thrown-away costs of Kshs. 50,000 were awarded to the Plaintiff for inconvenience, and the application costs were made to abide the suit.

Reasoning

Relying on Section 27(1) of the Civil Procedure Act and the Supreme Court decisions in Jasbir Rai Singh and Cecilia Karuru Ngayo, the court affirmed that a successful party should ordinarily be awarded costs unless good reason directs otherwise. It balanced this with thrown-away costs for the inconvenience of the amendment.

p. 14

Legal principles established

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  • Amendments of pleadings should be freely allowed unless they cause prejudice not compensable by costs; delay alone does not preclude amendment where costs can compensate.
  • A court may allow amendment of pleadings at any stage of the proceedings, including in a part-heard matter, if necessary to determine the real issues in controversy.

Court orders

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  1. 1.The Notice of Motion application dated 28th May, 2024 be and is hereby found to have merit and is allowed entirely
  2. 2.Leave granted to the 2nd, 4th and 5th Defendants/Applicants to further amend their Defence and to introduce a counterclaim in terms of the annexed draft Amended Written Statement of Defence and Counterclaim
  3. 3.The 2nd, 4th and 5th Defendants/Applicants to file their Amended Defence and Counter-Claim within 7 days of the ruling
  4. 4.The Plaintiff/Respondent granted corresponding leave of 7 days to file a Further Further Amended Plaint and respective responses to the Amended Defence and Counter-Claim, if need be, and Defence to the Counter-Claim
  5. 5.The Plaintiff/Respondent shall have costs of Kshs. 50,000/- as thrown away costs, borne by the 2nd, 4th and 5th Defendants jointly and severally
  6. 6.The scheduled hearing of the matter to remain as 19th November, 2024
  7. 7.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 100
  • Civil Procedure ActSection 27(1)
  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure Rules, 2010Order 37 Rule 7(2)
  • Civil Procedure Rules, 2010Order 8 Rules 3 and 5
  • Registration of Lands Act Cap. 300 (now repealed)Section 138
  • Constitution of Kenya, 2010
  • Limitation Act

Cases cited (16)

  • Ochieng and Others v First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Kassam v Bank of Baroda
    [2002] 1 KLR 294
  • Abdul Karim Khan v Mohamed Roshan
    [1965] EA 289
  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR
  • Cieni Plains Company Limited & 2 others v Ecobank Kenya Limited
    [2017] eKLR
  • Nelson Rurira Kang'ethe & another v Joyce Wambui Kamanja & 2 others
    [2018] eKLR
  • Bellamy v Sabine
    [1857] 1 De J 566
  • Festus Oganda v Hans Million
    Civil Appeal No. 100 of 2007
  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Central Kenya Limited Case
    No. 222 of 1998
  • K K Lodgit Limited v Geminia Insurance Company Ltd & Another
    (2021) eKLR
  • Eastern Bakery v Castelino
    [1958] E.A. 461
  • Cyrus Mucebiu Irungu v Alexander Mugambi Miriti & 7 others
    [2019] eKLR
  • David Jonathan Grantham & Another v National Social Security Fund
    [2007] eKLR
  • Jasbir Rai Singh v Tarchalan Singh
    (2014) eKLR
  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    (2014) eKLR
Jurisdiction invoked
Sections 3A and 100 of the Civil Procedure Act, Cap. 21; Order 2 Rule 15 and Order 37 Rule 7(2) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission v Chembe Holdings Limited & 4 others (Civil Suit 70 & 71 of 2009 (Consolidated)) [2024] KEELC 6432 (KLR)", Case Analysis (2024). Notice of Motion application dated 28th May, 2024 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6432/eng@2024-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.